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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, September 12, 2014

Pro se excessive force victim wins appeal

It is too early in the case to know if any of this is true, but the plaintiff alleges that police officers yanked his arms without cause, smashed his face into the ground and stood on his hands when he was handcuffed. Other officers watched it happen but did not intervene. The plaintiff sued the officers and the trial court dismissed the case. The Court of Appeals revives the excessive force claim.

The case is Simcoe v. Gray, a summary order decided on August 27. Simcoe represents himself on appeal, by the way, and he appears to be in jail at the moment, which makes his appellate victory even more impressive. While the district court granted the officers qualified immunity upon finding that plaintiff resisted arrest, the Court of Appeals (Walker, Wesley and Livingston) says this was faulty reasoning. The trial court "did not address Simcoe's statements that defendants assaulted him after he was handcuffed." Plaintiff also testified that he did not resist arrest. That testimony is enough to create an issue of fact for trial.

Plaintiff also did enough legal research in the prison law library to learn that you can sue a police officer for failure to intervene when a fellow officer is breaking the law. That claim survives as well. Officers may look out for each other, but they cannot look the other way when someone is beating up someone for no reason. If there is a realistic opportunity for the officer to intervene, he must do so.

What reads like a routine decision gets more interesting when we see that defendants argue that they deserve summary judgment because plaintiff testified at his criminal trial that he remembered being handcuffed and Tasered "and that was about it." He also testified that he was "out of his mind" and lost control that evening. He also did not mention excessive force in an apology letter he wrote to the police department. These are credibility arguments, not conclusive facts that would justify summary judgment for the officers. At best, the criminal trial testimony was ambiguous and it "was not dispositive because it was not necessary to the verdict." The "lost control" testimony is also too ambiguous to establish as a matter of law that the police had no choice but to use force. While he did not mention excessive force in the apology letter, that is not sufficiently contradictory to throw out his civil suit.